Kenneth Isom, a Drew County man sentenced to death in December 2001 for the stabbing and bludgeoning death of a 79-year-old Monticello man and the rape and attempted murder of the man’s elderly caretaker, has lost another appeal.
The 51-year-old death row inmate contended that the Drew County Circuit Court abused its discretion in dismissing his petition for a writ of error coram nobis because the State suppressed evidence (a Brady violation), limiting discovery for an evidentiary hearing, and denying his motion that Circuit Judge Sam Pope recuse.
The Arkansas Supreme Court found that the Drew County Circuit Court did not abuse its discretion in dismissing his Isom’s petition, did not abuse its discretion in limiting discovery, and did not abuse its discretion in denying the motion for recusal.
“I am pleased with the ruling but very unhappy that the jury’s verdict has not yet been implemented,” said 10th Judicial District Prosecutor Thomas Deen.
Shortly before 8 p.m. on April 2, 2001, a man knocked on the door of 79-year-old William “Bill” Burton’s mobile home in Monticello where he was being cared for by a 71-year-old woman. The woman answered the door, and the man pushed his way inside and demanded money.
Wielding a pair of broken scissors, the man ordered Burton and the woman to lie on the floor of the mobile home where Burton was stabbed and beaten with a lamp. The woman was raped, choked, and beaten. They were discovered the following morning by a neighbor who called police.
Burton died, but the woman survived the attack and subsequently picked Kenneth Isom, then 34, from a photo lineup. At trial, she pointed to Isom in the courtroom, identifying him as her assailant.
In addition to the woman’s eyewitness account of the crimes, DNA evidence indicated there is a one in 57 million chance that another male of the black race is the man who raped the woman.
A Drew County jury in 2001 convicted Isom of capital murder, attempted capital murder, aggravated robbery, residential burglary, and two counts of rape. He was sentenced to death for the capital-murder and received two life sentences for the rapes, a life sentence for aggravated robbery, 60 years for attempted capital murder and 40 years for residential burglary. All of his sentences were ordered to be served consecutively.
His convictions were affirmed on direct appeal. Subsequently, the Arkansas Supreme Court upheld the denial of Isom’s Rule 37 petition (ineffective assistance of counsel) and a petition for additional DNA testing. Isom later filed an application for a writ of habeas corpus in federal court. The federal district court ordered Isom to return to state court to exhaust his state remedies.
In a 4-3 decision in May 2015, the Arkansas Supreme Court ruled Isom was entitled to new hearing in Drew County Circuit Court to consider eight claims. In June 2015, Isom filed a petition for writ of error coram nobis in Drew County Circuit Court. A writ of error coram nobis is a remedy that is available in compelling circumstances to address fundamental errors. The hearing for the petition was set for December 2015.
Before the hearing, Isom moved for discovery and for the recusal of Circuit Court Judge Sam Pope. Both motions were denied. In its order denying discovery, the Drew County Circuit Court said any witnesses or evidence that Isom’s attorneys needed could be subpoenaed to the hearing. Following the hearing and the submission of post-hearing briefs, the circuit court dismissed Isom’s petition. Isom appealed that decision.
Arkansas Supreme Court Ruling
In reinvesting the Drew County Circuit Court with jurisdiction to consider Isom’s claims, the Arkansas Supreme Court tasked the circuit court with resolving factual disputes raised in Isom’s application. When acting as a fact-finder, the circuit court determines the credibility of witnesses, resolves conflicts and inconsistencies in testimony, and assesses the weight to be given the evidence.
Isom asserted in his petition that the surviving victim was shown two photo-lineups that included his picture: a lineup of stock photographs on April 4, and a poster-sized lineup of enlarged photographs on April 5. He claimed that when the woman was shown the stock photographs, she failed to identify him as her attacker. The Drew County Circuit Court disagreed.
On appeal, Isom contends that the circuit court erred in finding that there was no failed identification on April 4.
To provide context for Isom’s arguments, the Arkansas Supreme Court quoted extensively from the Drew County Circuit Court’s order which stated that it is Isom’s burden to convince the court that a photo line-up was shown to the woman on April 4, 2001 and he failed to do so.
According to the Drew County Circuit Court’s order, the photo lineup was in fact shown to the woman April 5, 2001, at about 12:54 p.m. when she was a patient in the Intensive Care Unit of Drew Memorial Hospital in Monticello. The photo lineup was admitted at Isom’s trial.
Isom, however, argued that a photo lineup was shown by the police investigators to the woman on April 4, 2001, based on a nurse’s note, which stated: “Police here asking for (the surviving victim) to ID suspect from photos. Attempts ID. Police officers to enlarge photos and bring them back tomorrow. (The surviving victim) agrees to view enlarged photos tomorrow.”
The nurse who wrote the note testified at the hearing. She said she had no independent memory of what occurred and offered no testimony about what she meant by “attempt.”
The Court considered additional evidence on that particular issue as well. At Isom’s trial, the surviving victim was questioned on cross-examination by defense counsel about her identification, specifically the photo lineup she viewed on April 5, 2001. The text of that cross-examination follows:
Q: And you looked at the picture?
A: (Nodding affirmatively)
Q: Did you have your glasses on when you looked at the pictures?
A: I’m not sure about the day. They brought me some, a smaller sheet of pictures, and they told me to be sure that, to take time to look at them real good and everything. And I told them it might be better to wait till I got my, some glasses, you know, well, my glasses were all broke up at Bill’s (murder victim’s) house. And so (the eye doctor) fixed a pair of glasses for me. And so that’s when I looked at the pictures again and I picked out, I picked out the man.
The initial emergency room report of (the surviving victim’s) admission to Drew Memorial Hospital shows she was admitted to the emergency room on April 3, 2001 at 9:36 a.m. Other evidence reflects she was transported there by ambulance. The chief complaint being “assaulted.” Other portions of the exhibit show she complained of sexual assault the night before. She had numerous injuries described in the exhibit, including multiple bruises and lacerations in her facial area, and facial fractures. A doctor’s note, dated April 4, 2001, indicated that the woman’s “orbits are particularly swollen and known fractures are present. Her eyes are bloodshot and hemorrhagic conjunctivitis.” The doctor further noted that an ophthalmic consultation would be obtained. The records further note such a consultation took place the same day at 11:45 a.m. The Court was unable to read all of the note but could read enough to find that eye injuries were confirmed by the examination.
Prior to trial, a motion was filed to suppress a photo line-up that was admitted into trial evidence. At a hearing on that motion, a police investigator and eye doctor both testified. The police investigator testified that he was unaware of any other lineup being shown, but there was some discussion in several places of a prior photo line-up. The proof showed that the woman had been assaulted on the evening of April 2. On April 5, two police investigators went to Drew Memorial Hospital to see her. A police investigator testified that the woman had been given some medications to “calm her.” They spoke with her, but she could not see them because her eyes were swollen shut and she needed her glasses, so they decided to wait to show her the photo line-up.
During the delay, the eye doctor’s lab prepared another set of glasses for the woman, to replace the glasses broken in her attack. The eye doctor testified that he took the new glasses to the hospital and fitted them on the woman because of the swelling on her facial area. He further testified that she stated after they were fitted she could see the clock on the wall across the hospital room, actually telling them the time from the clock.
Later, after that fitting at 12:54 p.m., three police investigators went back to the hospital and showed the woman the photo line-up at issue which was admitted at trial and from which Isom was identified.
“From all this evidence, both direct and circumstantial, the Court is of the firm conclusion that no second array, which is the basis of this argument, was shown to (the victim) on April 4 or April 5,” the Arkansas Supreme Court said. “Since the Court finds that this prepared photo array was not in fact shown to (the woman), it follows that this was not in fact evidence favorable to defendant within the meaning of Brady. This argument is thus rejected.
Having set out the relevant findings, the Arkansas Supreme Court turned its attention to Isom’s contention that the Drew County Circuit Court erred in finding that there was no failed identification on April 4. Isom argued that the Drew County Circuit Court erred in (1) discounting the nurse’s note, (2) relying on the woman’s misquoted testimony, and (3) crediting a police investigator’s suppression-hearing testimony.
The Arkansas Supreme Court addressed each argument separately.
1. The Nurse’s Note
First, Isom contends that the circuit court erred in discounting the nurse’s note because she did not define the word “attempt” in her testimony. He asserts that the word “attempt,” as commonly used, is not ambiguous, and therefore, “attempts ID” in the note means that the victim looked at the photo and was not able to make an identification. The Drew County Circuit Court did not agree with Isom’s definition of “attempts ID” or give great weight to the note. The Arkansas Supreme Court said determining the weight of the evidence is a matter for the fact-finder (the Drew County Circuit Court). Isom’s disagreement with the weight given to evidence does not establish clear error, the Arkansas Supreme Court found.
2. Victim’s Testimony
Next, Isom noted that the Drew County Circuit Court cited the victim’s trial testimony to support its finding that there was no failed identification on April 4. He contends that the circuit court misquoted the woman’s testimony and that her actual testimony supports the failed lineup theory. At trial, she was asked, “Did you have your glasses on when you looked at the pictures?” The circuit court stated that the woman responded, “I’m not sure about the day.” Isom said the woman responded responded, “I’m not sure about that day.”
The transcript states:
Q: Did you have your glasses on when you looked at the pictures?
A: I’m not sure about that day. They brought me some, a smaller sheet of pictures and they told me to be sure that, to take time to look at them real good and everything. And I told them it might be better to wait until I got my, some glasses, you know. Well, my glasses was all broken up at Bill’s house. And so (the eye doctor), he fixed a pair of glasses for me. And so that’s when I looked at the pictures again and I picked out, I picked out the man.
Isom contended that the woman used the word “that” because she was specifying one of two times when she looked at photographs of suspects. He stated that she ended her answer with “that’s when I looked at the pictures again,” also indicating that she looked at photographs twice.
The Arkansas Supreme Court said Isom is correct that the Drew County Circuit Court misquoted the woman’s testimony. However, based on its review of the of the record and the Drew County Circuit Court’s order, the Arkansas Supreme Court concluded that the misquotation was a typographical error that did not otherwise affect the circuit court’s reasoning or decision. A fair reading of the woman’s testimony is that she was asked to look at photographs while in the hospital but declined to do so because she did not have her glasses.
3. Police Investigator’s Testimony
Isom asserted that the Drew County Circuit Court erred in relying on a police investigator’s testimony from the pretrial suppression hearing to support a finding that the victim was shown only one photo-spread. Isom asserted that the testimony was “proven false” by other evidence in the record, including the police investigator’s own testimony at the coram nobis hearing. In support, he refers to the police investigator’s inconsistent testimony about the lineups. He testified at the suppression hearing that he and another police investigator went to the hospital on April 5 between 8:30 and 9:00 a.m. But at the coram nobis hearing, he testified that he and the other police investigator went to the hospital on April 4. He stated that he did not recall previously testifying that it was April 5. The police investigator testified at the suppression hearing that when he first went to see the victim, he brought the handmade poster array to the hospital, not the lineup of stock photographs. But at the coram nobis hearing, he testified that he brought the lineup of stock photographs to the hospital on his first visit. Here, the inconsistencies within the police investigator’s testimony, or between his testimony and that of others, were matters for the circuit court to resolve when making credibility determinations.
“We will not reverse a circuit court’s findings merely because we would have viewed the evidence differently,” the Arkansas Supreme Court said. “…. after hearing all the evidence, the circuit court concluded that there was no failed identification on April 4. We hold that the circuit court did not clearly err in finding that (the victim) viewed only the enlarged photospread on April 5, 2001.
Equivocation in Identification
Isom contends that the State withheld favorable, material evidence when it concealed a report prepared by a Arkansas State Police investigator that shows the victim equivocated between persons one and three when viewing the poster array. Isom’s claim that the police investigator’s report, known as the McKelvey Report” was suppressed is based upon the coram-nobis hearing testimony of two people: the office manager in the prosecuting attorney’s office who stated that she was unable to locate the report in the prosecutor’s file a decade after the trial, and the public defender’s current office manager who stated that she was familiar with the Isom file and “did not recall the report in the file.”
Isom contends that the State Police investigator’s report was not revealed to the defense until a Monticello police investigator testified at trial. During redirect examination, the prosecutor asked the Monticello police investigator about the victim’s statement and instructed the investigator to read through the investigator’s notes to refresh his memory.
Prosecutor: You said that Rick McKelvey had your notes from this statement?
Monticello Police Investigator: He has the investigator’s notes from the, where we made the, when (the victim) made the identification and what she said at the hospital.
Prosecutor: Can you go get those from them?
Monticello Police Investigator: Yes, sir.
Prosecutor: Okay. You found them.
Monticello Police Investigator: Yes.
Prosecutor: Would you read through them?
Monticello Police Investigator: Yes.
Prosecutor: And not – – Don’t read them out loud. I just want you to read through them to refresh your memory.
Defense Attorney: May we approach the witness to see where he is and what he’s reading?
On cross-examination, the Monticello police investigator disagreed with the suggestion in the McKelvey Report that the woman had equivocated in her identification. According to the Monticello police investigator, the victim told investigators that the men shown in photos 1 and 3 shared a common attribute, that is, a round-shaped face. Following the cross-examination, defense counsel moved to admit the McKelvey Report as Defendant’s Exhibit One:
Defense Attorney: I’d like to introduce that statement as a Defense Exhibit Number One.
Judge: Okay. Do we have a copy of it?
Defense Attorney: No, sir. I’m – –
Defense Attorney: — sure I’ve got one – –
Judge: Well, just get us one. Any objection?
Prosecutor: No objection, Your Honor.
Judge: Okay. It’ll be admitted as Defendant’s One once it’s procured and properly tendered.
The report was admitted into evidence.
Isom claims that the report was first disclosed during trial, when the Monticello police investigator testified. The record reveals that while the Monticello police investigator was looking at the report to refresh his recollection, defense attorney asked to approach and see what he was reading. The circuit court allowed defense attorney to approach. Then, defense attorney used information in the report while cross-examining the Monticello police investigator to impeach the certainty of the victim’s identification. Thereafter, the defense attorney admitted the report into evidence. The defense attorney did not say that he had not seen the report before trial.
“Based on our review of the record, we hold that the circuit court did not clearly err in finding that Isom failed to prove that the McKelvey Report was newly discovered Brady evidence,” the Arkansas Supreme Court said.
Field Notes of Witness Interviews
Isom alleged in his petition that the State failed to disclose handwritten notes from interviews with a witness that would have impeached her trial testimony. He contends that the circuit court erred in finding that the notes were not impeaching.
The witness lived across the street from Burton and Alfred Collins. She was interviewed twice by a State Police investigator on April 3, at approximately 10:30 a.m. and again at approximately 4:00 p.m. According to the State Police investigator’s 10:30 a.m. notes, the witness told the investigator that she “may have seen [Isom] over at Alfred’s [on] Sunday. There [were] a lot of them out there then.” She also told the investigator that Isom “does hang out there.” According to the investigator’s 4:00 p.m. notes, when he interviewed the witness the second time, she told him that she “saw (the surviving victim) and Zero talking in [the] yard yesterday” and stated that it “had to be after 7:00 p.m.” when she “left to go get the kids at ball practice,” and “got back a little after 8:00.”
The investigator reduced his field notes to a typewritten report. The report does not mention the witness’ statement from her first interview that she may have seen Isom at Collins’s house on Sunday—the day before the attack. Only the typewritten report was turned over to the defense.
At trial, the witness testified that on Monday night at around 7:00 p.m., she saw Isom on Collins’s front porch talking with the surviving victim, who was standing in the yard. The witness also testified that she did not know what Isom and the victim were talking about and that she had never seen the two of them talking before, but it was not unusual to see Isom at Collins’ house. She testified on cross-examination that she had known Isom “a long time,” but she was unaware that he had the nickname “Zero” until she was questioned by the police.
The witness was cross-examined about why she failed to mention in her first interview that she had seen Isom talking with the victim on Monday night. She testified that the police officer “didn’t ask, so I didn’t tell him.” The witness further testified that after she “found out what happened,” she told the police officer that she had seen Isom and the victim talking on Monday night.
The Drew County Circuit Court found that the witness’ undisclosed statement to the State Police investigator that she “may have seen” Isom at Collins’ house on Sunday was not impeaching evidence.
“We agree,” the Arkansas Supreme Court said. “Whether Isom was at Collins’s house on Sunday was not relevant to the murder. Moreover, the evidence that was impeaching was brought out at trial. The jury heard (the witness’) testimony that in her first interview, she did not tell (the State Police investigator) that she had seen Isom talking with (the victim). We hold that the circuit court did not err in finding that the notes were not impeaching and thus not “favorable” evidence within the meaning of Brady.”
Denial of Discovery
Isom contended that the Drew County Circuit Court abused its discretion in limiting discovery in conjunction with his evidentiary hearing. He clams that the denial of discovery prevented him from proving his claim related to the suppression of physical evidence.
The Arkansas Supreme Court noted that Isom had alleged that a pair of scissors, purportedly the murder weapon, may have been suppressed. Isom claimed that the scissors were found in the search of a trailer home pursuant to information supplied by Kevin Green, an inmate of the Drew County jail. At a pretrial hearing, Deputy Prosecuting Attorney Frank Spain testified that a search of a trailer pursuant to Green’s tip failed to produce a pair of scissors. But at a Rule 37 hearing, Spain testified that scissors had been found in the search and submitted to the crime lab for testing. The Arkansas Supreme Court subsequently ordered the Drew County Circuit Court to conduct an evidentiary hearing to resolve the in inconsistency.
Before the hearing, police investigators were unable to find any of the scissors connected to the case. In the initial investigation, four pairs of scissors were found and submitted for testing, but none were forensically linked to the homicide. Isom asked the circuit court to order discovery of all evidence-submission forms received by the crime lab from the Monticello Police Department or the Arkansas State Police for Drew County between the crime and the trial. The Drew County Circuit Court issued an order finding that Isom was not entitled to pre-hearing discovery. At the hearing, the circuit court partially quashed a subpoena to the crime lab for evidence-submission sheets and required the lab to search only for submissions under the names of Isom and Kevin Green. Isom’s attorney renewed the discovery motion, which the circuit court again denied.
Isom says that, because of the circuit court’s ruling, he was unable to develop evidence that may have proved his claim at the hearing. Isom contends that his discovery request was closely linked to the question this court directed the circuit court to consider, which is whether the police uncovered evidence during the search of the trailer identified by Green. Isom states that he was able to question only the deputy prosecutor and State Police investigator about the search, and they both denied that it turned up any scissors. He claims that the requested discovery would have provided objective evidence as to whether a fifth pair of scissors had been found.
The Drew County Circuit Court placed no limit on Isom’s use of witness subpoenas for the hearing. The circuit court modified the document request that sought every evidence-submission form submitted by the Arkansas State Police or Monticello Police Department that emanated from Drew County over a nine-month period in 2001. The circuit court narrowed the request to all evidence-submission forms that had some connection to either Kenneth Isom or Kevin Green.
“We conclude that the circuit court did not abuse its discretion in limiting discovery,” the Arkansas Supreme Court said.
Isom contends that Circuit Court Judge Sam Pope should have recused himself as a matter of state and federal law. He bases his claim on actions that the judge took while he previously served as the prosecutor in unrelated cases against Isom.
Before the coram nobis hearing, Isom moved for Pope, to recuse based on actual bias or an appearance of bias. He attached to his motion exhibits showing that Pope, when serving as a prosecutor, had twice prosecuted him on serious charges. Isom was acquitted by a jury both times.
Also attached to the motion was an exhibit showing that Pope, while serving as a prosecutor, was successful in obtaining a conviction against Isom for theft of property and a 15-year prison sentence.
Isom acknowledges that this court has held that a circuit judge’s previous prosecution of a defendant is insufficient under Arkansas law to require recusal. Still, Isom contends that Pope’s actions related to Isom’s release on parole demonstrate actual bias or an appearance of bias sufficient to warrant recusal. Specifically, Isom asserts that Pope was biased against him because after Isom was paroled in February 1994, Pope contacted the governor’s office and attempted to have his parole rescinded.
Isom argued in his motion for recusal that Pope’s efforts as a prosecutor to meet with the governor’s office after Isom had been paroled and his stated desire to “return Mr. Isom . . . to prison” went above his ordinary duties as a prosecutor and represented a sincere conviction that Isom belongs in prison regardless of his legal right to be free.
Judge Pope declined to recuse himself from Isom’s murder case and ruled that “[w]hile nothing in the factual allegations regarding the judge’s prior actions as prosecutor . . . is incorrect, the conclusions and arguments drawn therefrom are incorrect.” Pope wrote that his actions were “not improvident or extraordinary” and were part of his role as an active and thorough prosecutor.
Isom also contended that the Pope should have recused himself because he appeared to exhibit bias in a pretrial order.
Before the coram nobis hearing, Isom asked to depose several witnesses who refused to speak with his legal team and requested access to handwritten investigative notes and crime-lab documents. Pope denied the motion for discovery and implied that if Isom’s attorney lacked evidence to support her claims she might be subject to sanctions for violating the Arkansas Rules of Professional Conduct.
Isom claimed that at the time his attorney moved for discovery, she had already filed a petition with the Drew County Circuit Court supported by 13 exhibits, that much of the information regarding the claims was in the possession of State “actors”, and that most of the State “actors” refused to speak with Isom’s legal team before the hearing.
Isom said the defense at every stage of a death-penalty case has a professional obligation to continue to investigate the case and that far from being sanctionable, requesting discovery was required by defense attorney’s professional obligations.
“Here, (defense attorney) appeared to be doing her job, and the judge’s reference to sanctions was not warranted,” the Arkansas Supreme Court said. “Still, we disagree with Isom’s contention that the judge’s treatment of the discovery request ‘showed hostility’ that requires recusal. The circuit judge acted within his discretion when he limited discovery, and his mention of Rule 11 did not compel his disqualification from the case.”
Finally, Isom contends that Pope showed a lack of impartiality during the hearing. He states that at the hearing, his attorney attempted to ask Rick McKelvey whether scissors were recovered by investigators following a tip from inmate Kevin Green. Isom states that McKelvey appeared to recall the search until Judge Pope inserted the idea that McKelvey’s answers could be explained because “Mr. McKelvey has hearing problems sometimes.” Isom further states that during the questioning of his trial attorney, Bing Colvin, regarding the impact of an attempted identification, the judge interjected himself again. Colvin responded to a question from the prosecution with a rhetorical question of his own wondering why police were trying to speak to the surviving victim without first getting an update on her medical condition. Isom contends that Pope showed favor to the State when he responded, “That’s simple Mr. Colvin. Called medical rights to privacy, you know . . . She’s got to consent to talk to them.” Having reviewed the transcript, we conclude that the judge’s interjections, while unnecessary, did not show bias against Isom.
In conclusion, the Arkansas Supreme Court found that the Drew County Circuit Court did not abuse its discretion in dismissing his Isom’s petition, did not abuse its discretion in limiting discovery and did not abuse its discretion in denying the motion for recusal.
Justices Josephine Linker Hart and Rhonda K. Wood dissented.
Hart said Pope’s refusal to recuse should be reversed.
“Not only is there an obvious appearance of impropriety, there was strong circumstantial evidence of actual bias in the circuit judge’s prior dealings with Mr. Isom,” Hart wrote. “I cannot overlook that all of the so-called ‘discretionary’ calls discussed in the majority opinion, as well as the lack of judicial temperament by the circuit judge, seem to substantiate the allegation of bias made before the hearing. Accordingly, a new hearing (by a new judge) should be ordered.”
“Given Judge Pope’s prior dealings with Isom, he should have recused from the error coram nobis matter.”
Hart said Pope’s request, as a prosecutor, to the governor to annul the parole board’s decision to parole Isom was extraordinary. “I do not find anything inappropriate in this act but considering it in totality with the history between Judge Pope and Isom, there is at least an appearance of bias in this matter. Every defendant is entitled to an impartial tribunal,” she said.
“Isom has been sentenced to death. Whether his error coram nobis petition succeeded ultimately depended on the number of close discretionary decisions made by Judge Pope, especially those pertaining to (the victim’s) attempted identification of Isom at the hospital, the officers’ testimony concerning the scissors, and the scope of discovery afforded Isom. Notably, each of these decisions weighed against Isom when the witnesses’ testimony appeared to be inexplicably inconsistent. It is unimaginable how Isom’s counsel was expected to present his case with the limited discovery obtained as each witness took the stand.
We give great deference to the circuit court in an error coram nobis hearing, and we review a circuit court’s factual findings only for clear error…. The circuit court determines the credibility of witnesses, resolves conflicts and inconsistencies in testimony, and assesses the weight to be given the evidence in an error coram nobis hearing,” Wood wrote. “However, it is difficult to afford the circuit court the deference our law requires given the extensive history between Judge Pope and Isom. Consequently, we should remand for a new error coram nobis hearing to be held by a different circuit court judge. Therefore, I believe justice compels reversal.